Legal Standard. The Trustees shall be subject to the same fiduciary duties to which the directors of a Delaware corporation would be subject if the Trust were a Delaware corporation, the Shareholders were shareholders of such Delaware corporation and the Trustees were directors of such Delaware corporation, and such modified duties shall replace any fiduciary duties to which the Trustees would otherwise be subject. Without limiting the generality of the foregoing, all actions and omissions of the Trustees shall be evaluated under the doctrine commonly referred to as the “business judgment rule,” as defined and developed under Delaware law, to the same extent that the same actions or omissions of directors of a Delaware corporation in a substantially similar circumstance would be evaluated under such doctrine. Notwithstanding the foregoing, the provisions of the Governing Instrument, to the extent that they modify, restrict or eliminate the duties (including fiduciary duties), and liabilities relating thereto, of a Trustee otherwise applicable under the foregoing standard or otherwise existing at law (statutory or common) or in equity, are agreed by each Shareholder and the Trust to replace such duties and liabilities of such Trustee under the foregoing standard or otherwise existing at law (statutory or common) or in equity.
Legal Standard. The Trustees shall be subject to the same fiduciary duties to which the directors of a Delaware corporation would be subject if the Trust were a Delaware corporation, the Shareholders were shareholders of such Delaware corporation and the Trustees were directors of such Delaware corporation. Without limiting the generality of the foregoing, all actions and omissions of the Trustees shall be evaluated under the doctrine commonly referred to as the “business judgment rule,” as defined and developed under Delaware law, to the same extent that the same actions or omissions of directors of a Delaware corporation in a substantially similar circumstance would be evaluated under such doctrine. The appointment, designation or identification of a Trustee as the Chair of the Board, a member or chair of a committee of the Trustees, an expert on any topic or in any area (including an audit committee financial expert), or the lead independent Trustee, or any other special appointment, designation or identification of a Trustee, shall not impose on that person any standard of care or liability that is greater than that imposed on that person as a Trustee in the absence of the appointment, designation or identification, and no Trustee who has special skills or expertise, or is appointed, designated or identified as aforesaid, shall be held to a higher standard of care by virtue thereof. Except to the extent required by applicable law or expressly stated herein, (a) no Trustee or Trust officer shall have any fiduciary duty or other legal duty or obligation to the Trust, the Shareholders or any other Person, and (b) the Trust shall have no fiduciary duty or other legal duty or obligation to the Shareholders or any other Person except the Trustees. Unless otherwise expressly provided herein or required by federal law including the 1940 Act, the Trustees shall act in their sole discretion and may take any action or exercise any power without any vote or consent of the Shareholders.
Legal Standard. The Trustees shall be subject to the same fiduciary duties to which the directors of a Delaware corporation would be subject if the Trust were a Delaware corporation, the Shareholders were shareholders of such Delaware corporation and the Trustees were directors of such Delaware corporation. Without limiting the generality of the foregoing, all actions and omissions of the Trustees shall be evaluated under the doctrine commonly referred to as the “business judgment rule,” as defined and developed under Delaware law, to the same extent that the same actions or omissions of directors of a Delaware corporation in a substantially similar circumstance would be evaluated under such doctrine. Except to the extent required by applicable law or expressly stated herein, (a) no Trustee or Trust officer shall have any fiduciary duty or other legal duty or obligation to the Trust, the Shareholders or any other Person, and (b) the Trust shall have no fiduciary duty or other legal duty or obligation to the Shareholders or any other Person except the Trustees. Unless otherwise expressly provided herein or required by federal law including the 1940 Act, the Trustees shall act in their sole discretion and may take any action or exercise any power without any vote or consent of the Shareholders.
Legal Standard. The Design/Builder shall furnish design/build services in accordance with design/build standards currently practiced by design/builders on projects similar in size, complexity and cost to the Project.
Legal Standard. In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court should “draw all reasonable inferences in Plaintiff[’s] favor, assume all well- pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v.
Legal Standard. A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Fed.
Legal Standard. 6 A district court has the inherent power to enforce a complete settlement agreement entered 7 into while the litigation is pending before it. In re City of Equities Anaheim, Ltd., 22 F.3d 954, 8 957 (9th Cir. 1995); Xxxxxx x. Near, 829 F.2d 888, 890 (9th Cir. 1987). This enforcement power 9 extends to oral agreements. Doi v. Halekulani Corp., 276 F.3d 1131, 1138 (9th Cir. 2002). The 10 moving party has the burden of demonstrating that the parties formed a legally enforceable 11 settlement agreement. In re Xxxxxxxx, 313 B.R. 302, 305 (B.A.P. 9th Cir. 2004) (citing 15A Am. 12 Jur. 2d Compromise and Settlement § 57 (2000)). 13 “The construction and enforcement of settlement agreements are governed by principles 14 of local law which apply to interpretation of contracts generally.” Xxxx X. x. Xxxxxx, 899 F.2d 15 753, 759 (9th. Cir. 1989). Therefore, even though the underlying cause of action presented in this 16 litigation is based upon a federal statute, this court applies California law regarding the formation 17 and interpretation of contracts in determining whether a legally enforceable settlement agreement
Legal Standard. The FAA provides that arbitration agreements in contracts involving interstate commerce “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA reflects a “federal policy favoring 3 The parties have only provided the April 2022 lease extension agreement. However, Plaintiff alleges that “[b]oth extension agreements were versions of Defendants’ standard form contracts issued for all extension agreements for terms over five months.” Compl. ¶ 29. arbitration” and the “fundamental principle that arbitration is a matter of contract.” AT&T Mobility LLC x. Xxxxxxxxxx, 563 U.S. 333, 339 (2011) (internal quotation marks omitted). Under the FAA, parties can petition a district court for an order directing that “arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4. The district court must stay proceedings once it is “satisfied that the parties have agreed in writing to arbitrate an issue or issues underlying the district court proceeding.” WorldCrisa Corp. x. Xxxxxxxxx, 129 F.3d 71, 74 (2d Cir. 1997) (quoting XxXxxxx Sec. Co. v. Forum Cap. Mkts. L.P., 35 F.3d 82, 85 (2d Cir. 1994)); see 9 U.S.C. § 3. The Court is required to “direct[] the parties to proceed to arbitration in accordance with the terms of the [arbitration] agreement[,]” provided that there is no issue regarding its formation or validity. 9 U.S.C. § 4; Xxxxxxx x. Maggies Paratransit Corp., 203 F. Supp. 3d 244, 246 (E.D.N.Y. 2016). To determine whether parties have agreed to arbitrate a dispute, “courts consider two questions: (1) whether a valid agreement to arbitrate under the contract in question exists and (2) whether the particular dispute in question falls within the scope of that arbitration agreement.” Xxxxxxxx v. Nat’l Football League, 96 F. Supp. 3d 81, 99 (S.D.N.Y. 2015). The initial question of whether a valid “agreement exists between the parties . . . is determined by state contract law.” Xxxxx x. Uber Techs., Inc., 868 F.3d 66, 73–74 (2d Cir. 2017).
Legal Standard. To survive a Rule 12(b)(6) motion to dismiss, “the plaintiff must provide the grounds upon which [its] claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. x. Xxxxx Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Alt. Corp. x. Xxxxxxx, 550 U.S. 544, 555 (2007)). In other words, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Xxxxx v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (quoting Xxxxxxx, 550 U.S. at 570); see also Xxxxxxxx x. Xxxxx, 556 U.S. 662, 678 (2009) (same). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Xxxxx, 556 U.S. at 678. In applying that standard, the court accepts as true all well-plead factual allegations, 8 The Complaint additionally alleges the Trustee’s failure to comply with a purported duty to perfect title to the Mortgage Loans. (See, e.g., Compl. ¶¶ 29-34, 50-63, 65-66, 72.) Plaintiff did not oppose defendants’ motion to dismiss this claim. (See Pl. Opp’n at 13-21.) Accordingly, plaintiff is deemed to have abandoned the claim, and it is dismissed with prejudice. See Xxxxxxx x. City of New York, 705 X. Xxxx. 2d 261, 268 (S.D.N.Y. 2010) (Xxxxxx, X.X.) (collecting cases). but does not credit “mere conclusory statements” or “threadbare recitals of the elements of a cause of action.” Id. If the court can infer no more than “the mere possibility of misconduct” from the factual averments, dismissal is appropriate. Xxxxx, 592 F.3d at 321 (quoting Iqbal, 556 U.S. at 679).
Legal Standard. 21 The Court may finally approve of a class settlement “only after a hearing and on finding 22 that it is fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2); Officers for Justice v. Civil
